This update is intended to caution Canadian organizations and key individuals about the increased risk of criminal liability after a workplace accident.
” … [A] significant term of imprisonment is necessary to reflect the terrible consequences of the offences and to make it unequivocally clear that persons in positions of authority in potentially dangerous workplaces have a serious obligation to take all reasonable steps to ensure that those who arrive for work in the morning will make it safely back to their homes and families … “
This strong statement was written by Justice MacDonnell in the January 11, 2016 sentencing decision in R. v Vadim Kazenelson. In this decision, Mr. Kazenelson, a construction project manager, was sentenced to 3.5 years in prison for each of five convictions of criminal negligence (sentences to be served concurrently) relating to the collapse of a swing stage that led to the death of four workers in Ontario. Mr. Kazenelson had earlier been found guilty of committing these offences, following a trial.
With this sentencing decision, the tragic saga of a quadruple fatality on a construction site on Christmas Eve 2009 has finally come to legal conclusion.
In August 2009, Metron Construction (“Metron”) was retained to repair concrete balconies on two high-rise apartments. As was its normal practice, Metron hired a project manager and a site supervisor to oversee the project. Mr. Kazenelson was retained by Metron as its project manager. Mr. Kazenelson owned and operated his own construction company and, according to reports, came highly recommended as an experienced and qualified project manager.
On December 24, 2009, a number of Metron workers were working on the 14th floor of one of the high-rise apartment buildings. At approximately 4:30 pm, six workers—including the site supervisor—climbed onto a swing stage (a suspended work platform) to travel to the ground. The swing stage collapsed. Four workers fell to their death, a fifth worker survived the fall but was seriously injured, and the sixth worker did not fall because he was stopped by a properly secured lifeline.
A post-incident investigation revealed that three of the deceased workers—including the site supervisor—had levels of marijuana in their systems consistent with recent consumption, and there were only two lifelines in the area serviced by the swing stage. It was also discovered that the design and assembly of the swing stage was faulty. The manufacturer/supplier had not properly tested it or obtained the approval of an engineer in relation to its design. As designed, the swing stage was not safe for even two workers to use. The welding was inconsistently done and inadequate, and the welds were already cracked and broken prior to the swing stage’s collapse. Finally, when it was delivered to the construction project, the swing stage had no manual, markings, serial numbers, or labels regarding maximum capacity.